August 26, 1852, Lieutenant Governor Le Marchant replied to the note of Vice-Admiral Seymour:

Referring to your excellency's letter of the 23d instant, which, with its enclosures I have had the honor to receive, I beg to remind you that copies of the instructions under which the captains of the provincial cruisers are acting, are in your excellency's possession. On reference to these you can satisfy yourself that they contain no authority whatever to act upon our [Nova Scotia's] construction of the convention, except where vessels are actually found fishing within three marine miles of the shore."

The provincial secretary of Nova Scotia, August 26, 1852, advised Captain Laybold, who was in command of the provincial cruiser Halifax:

I am commanded by the lieutenant governor to call your attention to the enclosed copy of a despatch from Vice Admiral Sir George F. Seymour, with statements of certain masters of American fishing vessels enclosed. You will without delay, furnish me with such explanation as will enable the lieutenant governor to judge how far the conversations which are made matter of complaint, have been accurately reported. And, in the meantime, you will take care to detain no vessel which is not found trespassing within three miles of land.

Captain Dodd, in command of the provincial cruiser Responsible, wrote to Provincial Secretary Howe of Nova Scotia, August 29, 1852:

The assertion of William Page, master of the schooner Paragon, may be correct, for I did to several American captains (and he may have been one of them), say that I should draw a line from the headlands of the coast and bays of Cape Breton, and seize all American vessels found trespassing within three marine miles of such line; and such are my intentions until further orders, as I consider myself bound to do so by my instructions, in which I am referred to the convention of 1818; and as it would be great presumption in me to attempt to put any construction on that treaty, I feel myself bound by the opinions of the Queen's advocate, and Her Majesty's attorneygeneral, given in 1841; and also by the result of the trial of the American schooner Argus, which vessel was seized by me within a line drawn from Cow Bay Head to Long Point, near Cape North, Cape Breton, and condemned.

September 1, 1852, Captain Dodd, having received the note of the provincial secretary, replied:

I have the honor to acknowledge the receipt of your letter dated 26th August, enclosing a copy of a despatch from Vice-Admiral Sir George F. Seymour, with statements of certain masters of American fishing vessels, a copy of which statements was handed to me by

a U. S. Case, Appendix, 1079.
U. S. Case, 127; Appendix, 1080.
CU. S. Case, 127; Appendix, 1081.

the vice-admiral on the 27th of August, and which I answered on the 29th.

The orders not to detain vessels unless found trespassing within three miles of land shall be strictly attended to.a

The Government of Great Britain having issued instructions to the admiral in command on the North Atlantic station not to interfere with American fishing vessels unless found trespassing within three miles of land, no further correspondence in respect of seizures occurred during this period between the two Governments.

The revival of the controversy by the provincial authorities appears to have been inseparably connected with the attempt to secure freer trade relations with the United States.

In August, 1852, Lord Malmesbury, in an instruction to Mr. Crampton, the British minister at Washington, stated:

You will read this despatch to Mr. Webster, and in leaving a copy of it with him, you will not fail to assure him and to request him to assure the President of the United States that Her Majesty's Government continue to feel the same anxiety that has long been felt in this country for the maintenance of the best relations between the two governments, and it will be to them a source of sincere satisfaction. if the attention which has thus been drawn to the subject of the fisheries should lead to an adjustment, by amicable negotiations, upon a more satisfactory footing than at present, of the system of commercial intercourse between the United States and Her Majesty's North American colonial possessions."

The orders of the Government of Great Britain to the Admiralty were not modified prior to the reciprocity treaty of 1854. While there is to be found in the various notes and dispatches of the British Government expressions of opinion as to the rights of Great Britain under the Nova Scotia interpretation of the treaty, nevertheless it is established beyond all controversy that it was the deliberate judgment of the Government of Great Britain to regard as bays only those inlets of the sea which measure from headland to headland at their entrance the double of the distance of three miles," as determined by Lord Aberdeen. The orders issued from the date of the treaty, in so far as disclosed by the evidence, were not to detain vessels unless found trespassing within three miles of land," and "only to prevent their fishing nearer than three miles" to land.

66

66

In the Case of the United States the orders issued to the naval forces of Great Britain in the North Atlantic which were accessible bU. S. Case, Appendix, 522.

a U. S. Case, 127; Appendix, 1082.

to the United States in public records, were placed in evidence, and it was there shown that no attempt was made on the part of Great Britain to interfere, in the earlier period or during this period, with American vessels unless found within three miles of land.

The Counter Case of Great Britain does not question this fact and offers no evidence in contradiction of it, nor are any orders issued to the naval forces in the North Atlantic covering these periods placed in evidence by Great Britain. The facts presented in the Case of the United States not having been controverted by Great Britain, and that Government having failed to produce any of the original orders to her naval officers, all of which orders are in her exclusive possession, these facts must be taken as admitted.

The conclusion of the reciprocity treaty of 1854 put this controversy at rest until 1866, when the treaty was terminated by the United States on notice given as therein provided. The provisions of this treaty superseded the treaty of 1818 in respect of the fisheries on the non-treaty coasts."

THE DECISIONS IN THE "WASHINGTON" AND "ARGUS" CASES.

There is one event of the first importance to be considered before this period is passed. February 8, 1853, the United States and Great Britain concluded a claims convention. The claims for damages arising from the seizure of the Washington and Argus were among those submitted to the joint commission created by that convention.

The commissioners for the two Governments disagreed in both of these cases, and they were referred to the umpire, who decided both claims in favor of the claimants, and sustained the contention of the United States as to the true interpretation of the renunciatory clause of the treaty.

The decisions of the umpire in the two cases are printed in full in the Case of the United States."

It will be recalled that the Washington was seized within the Bay of Fundy from six to ten miles from the shore, on the 10th of May, 1843, and that the Argus was seized in August, 1844, off the coast of Cape Breton, when, it was claimed, the vessel was within three miles of a line drawn from Cow Bay Head to Cape North.

a U. S. Case, 133; Appendix, 26.

U. S. Case, 131-133.

It will also be recalled that these seizures were the only ones ever made in the great bays when the vessels were beyond three miles from land, and that they were made for the specific purpose of “testing the question."

The United States and Great Britain squarely presented the issue raised by these seizures to the joint commission and later to the umpire. The decision of the umpire was against the contention of the Government of Great Britain, and held that these large outer bays, similar to the Bay of Fundy and the bay formed by a line from Cow Bay Head to Cape North in Cape Breton, were not bays within the meaning of the treaty of 1818.

During the continuance of the reciprocity treaty of 1854, inasmuch as the inhabitants of the United States were by the terms of that treaty permitted to resort to all the inshore fisheries without any limitation as to the distance from shore, the question, presented and determined in the two cases of the Washington and Argus, was not the subject of controversy between the two powers, nor was it the subject of discussion between the provincial authorities and the Government of Great Britain, so far as the evidence discloses.

THE POSITION OF GREAT BRITAIN AFTER THE TERMINATION OF THE TREATY OF 1854.

On the termination of this treaty the American fishermen reverted to the provisions of Article I of the treaty of 1818 as the measure of their rights on the non-treaty coasts.

The Earl of Clarendon, in a note to Sir Frederick Bruce May 11, 1866, stated:

Her Majesty's Government are most desirous that the rights of the colonies should be so enforced as to give the least possible occasion for complaint or discussion. They have cordially approved and have recommended to the governments of the other British provinces a proposal made by the authorities of Canada that American fishermen should for the present season be allowed to enjoy under special licenses, the benefits conferred by the reciprocity treaty."

It is apparent from a note of Mr. Cardwell of the foreign office that the authorities of Nova Scotia were opposed to the policy of issuing licenses to the fishermen of the United States. The lieuten

a U. S. Case, Appendix, 575.

U. S. Case, Appendix, 576.

ant-governor of Nova Scotia, Sir W. F. Williams, was, however, instructed by Mr. Cardwell:

I must distinctly inform you that on a matter so intimately connected with the international relations of this country, Her Majesty's Government will not be disposed to yield their own opinion of what it is reasonable to insist on, nor to enforce the strict rights of Her Majesty's subjects beyond what appears to them to be required by the reason and justice of the case.a

The Province of Canada authorized the issuance of fishing licenses on the payment of a small sum entitling the holder to enjoy all the rights granted the fishermen of the United States under the reciprocity treaty, which, of course, included the right to fish along the shores without regard to any distance therefrom."

In June, 1866, the foreign office was advised that Nova Scotia and New Brunswick would consent to the issuing of such licenses and in July, 1866, the Government of Prince Edward's Island agreed to the license system.

Under the British North America Act of March 29, 1867, the Provinces of Nova Scotia, New Brunswick, and Quebec federated with the Province of Canada, and thereafter the Government of the Dominion of Canada assumed authority over their coast fisheries.

The system of granting licenses continued until 1870.e

The American fishermen gradually refused to apply for licenses, as the fee was considerably increased by provincial legislation above the fee established in 1866, and, as a result, difficulties began to arise concerning the rights of fishermen of the United States under the treaty of 1818.

In view of the position of Great Britain prior to the reciprocity treaty of 1854, and the decisions in the cases of the Washington, and Argus, it is here important to particularly note the attitude of the Government of Great Britain regarding the true interpretation and enforcement of this renunciatory clause.

In April, 1870, Mr. Fish asked Mr. Thornton, the British minister at Washington, for information as to whether or not it was the intention of the Dominion Government to issue any more licenses to foreign fishermen."

Mr. Thornton in a note to Mr. Fish, April 14, 1870, enclosed a memorandum from Sir John A. McDonald, prime minister of the

a U. S. Case, Appendix, 577.

U. S. Case, 153; Appendix, 577.
CU. S. Case, Appendix, 578.

d U. S. Case, Appendix, 579.
e U. S. Case, 138.